Drones and Aerial Surveillance — Considerations For Legislators

The looming prospect of expanded use of unmanned aerial vehicles, colloquially known as drones, has raised understandable concerns for lawmakers. Those concerns have led some to call for legislation mandating that nearly all uses of drones be prohibited unless the government has first obtained a warrant. Privacy advocates have mounted a lobbying campaign that has succeeded in convincing thirteen states to enact laws regulating the use of drones by law enforcement, with eleven of those thirteen states requiring a warrant before the government may use a drone. The campaigns mounted by privacy advocates oftentimes make a compelling case about the threat of pervasive surveillance, but the legislation is rarely tailored in such a way to prevent the harm that advocates fear. In fact, in every state where legislation was passed, the new laws are focused on the technology (drones) not the harm (pervasive surveillance).

  1. Legislators should follow a property-rights approach to aerial surveillance. This approach provides landowners with the right to exclude aircraft, persons, and other objects from a column of airspace extending from the surface of their land up to 350 feet above ground level. Such an approach may solve most public and private harms associated with drones.
  2. Legislators should craft simple, duration-based surveillance legislation that will limit the aggregate amount of time the government may surveil a specific individual. Such legislation can address the potential harm of persistent surveillance, a harm that is capable of being committed by manned and unmanned aircraft.
  3. Legislators should adopt data retention procedures that require heightened levels of suspicion and increased procedural protections for accessing stored data gathered by aerial surveillance. After a legislatively determined period of time, all stored data should be deleted.
  4. Legislators should enact transparency and accountability measures, requiring government agencies to publish on a regular basis information about the use of aerial surveillance devices (both manned and unmanned).
  5. Legislators should recognize that technology such as geofencing and auto-redaction, may make aerial surveillance by drones more protective of privacy than human surveillance.

In Conclusion

The emergence of unmanned aerial vehicles in domestic skies raises understandable privacy concerns that require careful and sometimes creative solutions. The smartest and most effective solution is to adopt a property- rights approach that does not disrupt the status quo. Such an approach, coupled with time-based prohibitions on persistent surveillance, transparency, and data retention procedures will create the most effective and clear legislative package.

  1. For a lengthier discussion of these issues and an expanded analysis of the legal concepts discussed in this policy paper, See, Gregory S. McNeal, “Domestic Drones and the Future of Aerial Surveillance” available at: http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2498116
  2. For a summary and analysis of the legislation, see Michael L. Smith, Regulating Law Enforcement’s Use of Drones: The Need For State Legislation available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2492374.
  3. FL. STAT. § 934.50 (2013), IDAHO CODE ANN. § 21–213 (2013), MONT. CODE ANN. § 46–5–109 (2013), OR. REV. STAT. § 837.310 et. seq. (2013), 2013 N.C. Sess. Laws. 1040, TENN. CODE ANN. § 39–13–609 (2013), TEXAS GOV. CODE ANN. § 423.002 (2013), 2013 Va. Acts 1408.
  4. WIS. STAT. § 175.55 (2014), 725 ILL. COMP. STAT. 167/10 et seq. (2014), IND. CODE § 35–33–5–9 (2014), UTAH CODE ANN. § 63G-18–103 (2014), IOWA CODE ANN. §§ 321.492B, 808.15 (2014).
  5. AB 1327: Unmanned Aircraft Systems California Legislative Information (August 22, 2014) http://leginfo.legislature.ca.gov/faces/billNavClient. xhtml?bill_id=201320140AB1327
  6. “The Rise of Domestic Drones” Radio Times With Mary Moss-Coane, at 42:20 http://whyy.org/cms/radiotimes/2014/08/25/the-rise-of-domestic- drones/ (ACLU advocate stating “Ideally we would like to see broad legislation that covers all surveillance technologies, whether it is GPS, or phone tracking, or what have you. But if you go to state legislatures — and we have our lobbyists in state legislatures — and try and put forth a very very broad surveillance bill like that right now, it’s not going to go anywhere. We are fighting a large scale war here against surveillance and privacy and right now we have an opportunity to get in place some rules around drones because there is so much public interest and fascination with drones. And so we are pushing forward on that front.”).
  7. See generally, “The Rise of Domestic Drones” Radio Times With Mary Moss- Coane, at 42:20 http://whyy.org/cms/radiotimes/2014/08/25/the-rise-of- domestic-drones/
  8. 476 U.S. 207 (1986).
  9. Id.
  10. Joshua Dressler, Understanding Criminal Procedure: Volume 1: Investigation, p.88 — 89, citing Ciraolo.
  11. 476 U.S. 207, 214 — 15
  12. 488 U.S. 445 (1989)
  13. United States v. Causby, 328 U.S. 256 (1946).
  14. Id.
  15. Id.
  16. Id.
  17. Id.
  18. See Troy A. Rule, Airspace In An Age Of Drones, 95 Boston University Law Review__ (forthcoming 2015), 12 available at: http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2482567, citing Stuart S. Ball, The Vertical Extent of Ownership in Land, 76 U. Pa. L. Rev 631 (1928), and Black’s Law Dictionary 453 (4th ed. 1968) noting that the full maxim reads “cujus est solum, ejus est usque ad coelum et ad inferos.”
  19. Troy A. Rule, Airspace In An Age Of Drones, 12.
  20. United States v. Causby, 328 U.S. 256 (1946).
  21. 328 U.S. 256, 264.
  22. Id. at 265.
  23. Id. at 264 — 266.
  24. While 500 feet is a useful rule of thumb for defining navigable versus non-navigable airspace, regulations governing navigable airspace are actually a bit more complex. Helicopters for example are exempted from minimum altitude regulations “if the operation is conducted without hazard to persons or property on the surface.” § 91.119(d). For fixed wing aircraft the rule is that over congested areas, the minimum altitude is 1000 feet above the highest obstacle within a horizontal radius of 2000 feet of the aircraft. § 91.119(b). For non-congested areas other than over open water or sparsely populated areas, the minimum is 500 feet. § 91.119(c). Over open water and sparsely populated areas, “the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.” See 14 C.F.R. § 91.119(b) — (c) (2012). Moreover, within certain distances of certain classes of airports and airspace altitude restrictions below 500 feet may also be in place.
  25. California v. Ciraolo, 476 U.S. 207, 213 (1986).
  26. Of course if such observations became frequent occurrences, legislatures could develop rules to govern such conduct.
  27. Florida v. Riley, 488 U.S. 445 (1989).
  28. Florida v. Riley, 488 U.S. 445, 462 — 463.
  29. Troy A. Rule, Airspace In An Age Of Drones, 20.
  30. See, “NYPD Helicopter Views Faces From Miles Away,” Wired, http://www. wired.com/2008/06/nypd-helicopter/ (explaining how an NYPD helicopter “s flying over the skies of Manhattan allowing police to see and recognize a face from two miles away, peer inside a building from three to four miles away, and track a suspect car from 12 miles away.”).
  31. Notably, FAA regulations don’t clearly answer this question as the minimum altitude varies based on how congested an area is.
  32. See, 14 C.F.R. § 91.119 which reads: Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes: (a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft. (c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure. (d) Helicopters, powered parachutes, and weight-shift- control aircraft. If the operation is conducted without hazard to persons or property on the surface — (1) A helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA (emphasis added)
  33. Troy A. Rule, Airspace In An Age Of Drones, 29.
  34. Troy A. Rule, Airspace In An Age Of Drones, 27.
  35. Id. at 34 (making a similar argument, noting “state legislatures could… enact new laws that gave landowners clear rights to exclude drones or other aircraft from entering into the low-altitude airspace above their land up to the existing navigable airspace line…”).
  36. Causby 264 — 265.
  37. See, “Kanye West Is Totally Right To Worry About Paparazzi Drones” http://www.slate.com/blogs/future_tense/2014/08/07/kanye_west_fears_ paparazzi_drones_that_s_totally_reasonable.html (noting West’s stated concerns [as recorded in a deposition] about drones “Wouldn’t you like to just teach your daughter how to swim without a drone flying? What happens if a drone falls right next to her? Would it electrocute her?” As for how that could happen, Kanye says, “Could it fall and hit her if that paparazzi doesn’t understand how to remote control the drone over their house?”). Limiting flights above private property, or property that is otherwise not accessible to the public could similarly prohibit flights like the reported drone flight above an LAPD impound lot that was otherwise obscured from view by a 16 foot wall, See “Don’t Fly Camera Equipped Drones Over Our Police Station, LAPD Says” http://arstechnica.com/tech-policy/2014/08/dont-fly-camera- equipped-drones-over-our-police-stations-lapd-says/ (noting police stating, “What concerns us is that they are filming over private property and it’s gated –you’re looking at the layout of the police station, how we operate, personnel license plates,” police Lt. Michael Ling said. “It’s kind of like if it was your house, if they’re flying over your backyard you’d start asking questions about it.”).
  38. For a contrary approach that extends the right to the public navigable airspace line, see Troy A. Rule, Airspace In An Age Of Drones, 35. ( “To preserve a level of privacy and safety comparable to what landowners enjoyed prior to the drones era, laws clarifying landowner airspace rights should define these rights as extending all the way up to the navigable airspace line of 500 feet above ground in most locations. A rule defining exclusion rights as covering only 100 feet or 200 feet above the ground would arguably be insufficient because it would allow small drones to cheaply hover above land and violate landowners’ privacy or threaten their safety from those altitudes…Because navigable airspace designations can vary by location, the exact heights of each parcel’s exclusion rights could initially be established based on the FAA’s existing navigable airspace designations.”).
  39. See, Interpretation of the Special Rule For Model Aircraft, available at: , See also, FAA Fact Sheet Unmanned Aircraft Systems, http://www.faa.gov/ news/fact_sheets/news_story.cfm?newsId=14153 (stating “Recreational use of airspace by model aircraft is covered by FAA Advisory Circular 91 — 57, which generally limits operations to below http://www.regulations. gov/#!documentDetail;D=FAA-2014–0396–0001 400 feet above ground level and away from airports and air traffic.”).
  40. To address the threat of pervasive surveillance whereby law enforcement might park a drone or other aircraft over a landowner’s property for extended periods of time, See Recommendation 2.
  41. States may need to update their trespass laws to address aerial trespass. For example, many jurisdictions define trespass as “entering on” or “remaining on” property, legislatures may need to clarify that property includes airspace.
  42. This is adapted in part from Slobogin at p.24.
  43. To see the perils of a process riddled with exceptions, consider the bill passed by the Texas legislature which has no fewer than 22 exceptions for drone use with carve outs for agricultural interests, electrical companies, oil companies, real estate brokers and others). See HB 912, available at: http:// www.legis.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=HB912
  44. See, Executive Order — Making Open and Machine Readable the New Default for Government Information http://www.whitehouse.gov/the-press- office/2013/05/09/executive-order-making-open-and-machine-readable- new-default-government-
  45. See https://twitter.com/HelicopterNoise; https://www.whatdotheyknow. com/request/issue_of_police_helicopter_fligh
  46. See http://www.parliament.uk/edm/2012-13/394 (proposed legislation to regulate/reduce the amount of noise pollution caused by nighttime police helicopter flyovers in London).
  47. Not all activity is published. The Cleveland (UK) Police Department’s website indicates that: “This page is intended to provide basic information to the general public regarding the work of the police helicopter and will be updated on a daily basis. Weekend and public holiday updates will appear on the next working day. Please note that not all items are always listed due to operational sensitivity or ongoing investigation.” http://www.cleveland.police. uk/news/helicopter-watch.aspx
  48. http://www.islingtongazette.co.uk/news/environment/police_helicopter_ twitter_account_stops_islington_complaints_1_1206725
  49. http://helihub.com/2012/09/03/uks-suffolk-police-helicopter-unit-now- on-twitter/
  50. For example, the “Preserving Freedom from Unwarranted Surveillance Act of 2012.”
  51. Perhaps a Parrot A.R. drone from the local mall’s Brookstone store, or a DJI Phantom bought on-line.
  52. 476 U.S. 207 (1986).
  53. Alameda County Sheriff’s Office, General Order 615 available at: http:// nomby.files.wordpress.com/2013/02/small-unmanned-aircraft-system- general-order-6–15-draft.pdf
  54. Paul Detrick, “Cops with Drones: Alameda Co. CA Weighs Technology vs. Privacy” available at: http://reason.com/reasontv/2013/04/04/cops-with- drones-technology-vs-privacy
  55. “Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft,” American Civil Liberties Union, December 2011, p. 16.
  56. For example, the “Preserving American Privacy Act of 2013” in Section 3119c creates a general prohibition on the use of covered information as “evidence against an individual in any trial, hearing, or other proceeding…” While the Act provides a set of exceptions, including one for emergencies, the language of the emergency exception as currently drafted does not clearly specify that inadvertent discovery of information unrelated to the emergency justifying the drone usage would be admissible, and it’s likely that defense counsel in such a case would seek to prohibit the admission of evidence in such a case by relying on the lack of a clearly specified exception.
  57. Id.
  58. Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 364 — 365 (1998).
  59. Hudson v. Michigan, 547 U.S. 586, 591 (2006).
  60. Herring v. United States, 129 S. Ct. 695, 700 (2009).
  61. This is consistent with the Supreme Court’s approach to Fourth Amendment violations per United States v. Calandra, 414 U.S. 338 (1974). (noting that allowing “a grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury’s duties, and extending the rule to grand jury proceedings would achieve only a speculative and minimal advance in deterring police misconduct at the expense of substantially impeding the grand jury’s role.”).
  62. This is consistent with Congress’ guidance in Federal Rule of Criminal Procedure 5.1(e) which states in relevant part “At the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was unlawfully acquired”.
  63. See 18 U.S.C. 3142(f) noting the “rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing.”
  64. Contra James v. Illinois, 493 U.S. 307 (1990).
  65. 468 U.S. 897 (1984).
  66. 468 U.S. 981 (1984).
  67. 487 U.S. 533 (1988).
  68. 467 U.S. 431 (1984).
  69. Note, Nix was a Sixth Amendment case but courts have applied the fruits analysis to searches.
  70. Nardone v. United States, 308 U.S. 338 (1939) and Wong Sun v. United States 371 U.S. 471 (1963) respectively.
  71. See, Brown v. Illinois, 422 U.S. 590, 604 (1975).
  72. Christopher Slobogin, “Making the Most of United States v. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory,” Duke Journal of Constitutional Law & Public Policy (forthcoming) available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2098002.
  73. Interestingly, Orwell seems to be a favorite citation for the ACLU who has cited him nearly 70 times in briefs.
  74. See Gregory S. McNeal, “Can The ‘Drone’ Industry Compete With The Privacy Lobby?” available at: http://www.forbes.com/sites/ gregorymcneal/2012/08/13/can-the-drone-industry-compete-with-the- privacy-lobby/



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